The Health 202: Kavanaugh may not completely gut Obamacare if he makes it to the Supreme Court

President Donald Trump's nominee for the Supreme Court, Brett Kavanaugh walks up the Senate steps to the United States Capitol with Vice President Mike Pence on Tuesday July 10, 2018. (Matt McClain/The Washington Post)

The future of the Affordable Care Act with a Justice Brett Kavanaugh on the Supreme Court doesn't necessarily mean a vote to end the GOP's perpetual punching bag.

Here at The Health 202, we wrote yesterday that Democrats feared a rightward turn of the court would solidify the ACA's spot, in addition to Roe v. Wade, on the endangered list. And since past Republican efforts to dismantle the health-care law only made it more popular with voters, Democrats are eager to cast Kavanaugh (as they would have with any Trump pick to the high court) as a threat to its existence.

But even legal experts who support the ACA aren't convinced that Kavanaugh will take the hard-line approach to Obamacare that conservatives long to see.

Nicholas Bagley, a defender of Obamacare and a professor at the University of Michigan Law School, told me it was his belief that Kavanaugh won't see ACA-related lawsuits as "health-care cases," but rather he'll "view them through the constitutional lens he brings to his cases more generally."

As a judge on the D.C. Circuit Court of Appeals, Kavanaugh issued the dissenting opinion in a 2011 case finding the ACA constitutional. But Kavanaugh never actually weighed in on the constitutionality of the law, instead arguing the court had no right to take up the case in the first place because of an 1867 law known as the “Anti-Injunction Act.” Kavanaugh considered the ACA's individual mandate penalty — the fine people pay if they don't buy insurance coverage — a tax, meaning under the centuries-old law, people couldn't legally challenge the statute until after their taxes were paid. (The individual mandate taxes didn't kick in until 2015.)

But in that dissent, Kavanaugh wrote the court should hear the case in the future, and when it did should consider the constitutionality of the law's regulations under the Constitution's "Commerce Clause." He warned that “to uphold the Affordable Care Act's mandatory-purchase requirement under the Commerce Clause, we would have to uphold a law that is unprecedented on the federal level in American history. That fact alone counsels the Judiciary to exercise great caution.”

He also suggested “the Government could impose imprisonment or other criminal punishment on citizens who do not have health insurance,” adding: “That is a rather jarring prospect.”

Those opinions on Obamacare were enough to make Democrats balk. Sen. Chris Murphy (D-Conn.), on the Senate floor Tuesday to talk about Kavanaugh's nomination, said: “The fact that Judge Kavanaugh went out of his way to talk about his fears as to how broad the Affordable Care Act may be in addition to . . . Trump's very clear signaling that he is only going to appoint a judge who was willing to overturn the Affordable Care Act tells you that if you have any of these [preexisting] conditions, you are in the crossfire right now."

The right wants the Supreme Court to strike down protections for people w preexisting conditions.

Kavanaugh has the anti-ACA, anti-consumer pedigree to lead the charge. That’s a big reason why Trump picked him.

But Mark Hall, director of the Health Law and Policy Program at Wake Forest University's School of Law, told me that while Kavanaugh's dissent is “notable,” it is not predictive of how the judge would vote in future cases involving the ACA.

“It's not some bombastic opinion,” he said. “There were some of those coming up that you could read into it that the judge did not like the law. Kavanaugh's is a very neutral position in regards to the merits of the law.”

The most likely ACA-related case that could come before the highest court next year is a suit filed in February by 20 red states in a Texas federal court that contends that without the individual mandate, the entire ACA is invalid. The GOP tax bill that passed at the end of last year repealed the financial penalty in Obamacare levied on Americans who didn't buy health insurance.

If that case made its way up to the Supreme Court, Abbe Gluck, a Yale law professor who supports the ACA, is hopeful that Kavanaugh would dismiss the Texas suit as “frivolous” when considering its "severability" merits, a legal doctrine that says even if one part of a law is found invalid, the rest should still stand.

The Republican states would argue the individual mandate is so intrinsically intertwined with the rest of the law that you can't have one without the other. But Gluck says that’s a “perversion of severability" because there’s no evidence that Congress intended for the rest of the ACA to fall with the elimination of the tax penalty. Congress expressly left the other regulations in the law standing when it repealed the penalty, she pointed out. And she believes Kavanaugh will see it that way too.

“Judge Kavanaugh is an expert in statutory interpretation,” Gluck told me. “He has written that courts should only excise the smallest possible part of the statue, and that is the opposite position Texas is taking.”

Gluck said that based on what she knows of Kavanaugh's past legal opinions, it would be difficult to imagine him siding with Texas on the ACA case.

Kavanaugh, at least in his public writings, is disdainful of an activist court. Writing in the Harvard Law Review in 2016, he said: “The American rule of law, as I see it, depends on neutral, impartial judges who say what the law is, not what the law should be. Judges are umpires, or at least should always strive to be umpires. In a perfect world, at least as I envision it, the outcomes of legal disputes would not often vary based solely on the backgrounds, political affiliations, or policy views of judges.”

While most legal observers agree that it's unlikely the ACA as a whole is at risk with Kavanaugh on the court — at least not anymore than it would have been if Justice Anthony M. Kennedy were staying — Gluck said Democrats have good reason to be concerned about other potential health care-related cases where Kavanaugh's stances are clear.

Gluck predicts there will be cases that accuse the Trump administration of sabotaging the ACA, which she says violates the Article II of the Constitution or the "Take Care Clause," which requires the president to act in good faith to enforce laws. Kavanaugh is on record as being a supporter of broad presidential powers, so one could surmise that he'd find reasons for the actions Trump has taken to weaken the ACA via regulations.

Also likely to make it's way through the courts is the question of whether states have the right to put restrictions on Medicaid eligibility. A federal judge recently ruled that Kentucky could not place work requirements on Medicaid recipients despite getting permission from the Trump administration to do so. Kavanaugh does not have a clear record on such issues because the D.C. Circuit, where he has spent his entire judicial career, tends to take on federal statutory cases rather than questions of state rights.

"It's a very complicated nomination," Gluck said. "There are aspects that aren’t as concerning for health care as they might be. When it comes to the Texas case, I’m not particularly concerned. But I think there are other health care cases that even those of us who admire Judge Kavanaugh will have questions about."

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AHH: The Trump administration is moving to slash a large portion of the funding for health-care navigators, the nonprofit groups tasked with advertising ACA insurance plans and helping people enroll in them, our colleague Amy Goldstein reports.

The move will cut federal funding for the grants from $36.8 million to $10 million for the enrollment period that begins in November. The program cuts began last summer when the Department of Health and Human Services announced it would slash the marketing budget for ACA marketplace enrollment, including cutting the navigators’ funding by 41 percent, from $62.5 million, Amy reports.

“Officials argued the ACA's shortcomings and diminishing returns from the advertising justify the cuts,” our colleague Paige Winfield Cunningham wrote last year when she reported in The Health 202 about the cuts.

The latest reduction in navigator funding, which the Centers for Medicare and Medicaid Services announced yesterday afternoon, “fits within a pattern of moves by the administration to weaken the sweeping health-care law that President Trump has vowed to demolish,” Amy writes. As a result of the failure of Republican lawmakers to repeal much of the ACA, the White House has instead made moves to weaken the law.

A woman from Wilmington, Del. protests family separation in Lafayette Square in Washington. (Evelyn Hockstein for The Washington Post)

OOF: The Trump administration said Tuesday it would not be able to reunite dozens of the youngest migrant children in government custody by a judge's deadline. Reasons include the fact that some parents have been deported, some adults were not the actual parents of children in custody, and others were determined to have a criminal history.

Thirty-eight children separated at the U.S.-Mexico border from their parents were reunited by a court-ordered deadline, the Justice Department said, noting that only 75 of the 102 children under age 5 meant to be reunited are even eligible for reunification.

In a new court filing, the Justice Department outlined the reasons it had missed the deadline to reunite all the children under age 5 with their parents by Tuesday's deadline. The filing noted that 14 were not eligible for reunification because eight parents had “serious criminal history discovered during background checks” and five adults were not the children’s parents, and another parent was facing “credible evidence of child abuse.” Another child cannot be reunited because the parent is being treated for a communicable disease, and yet another parent had been determined to be a risk to the child because the parent planned to live at the home of a sex offender, according to the filing.

“Federal officials said in court records filed Tuesday that after the 38 reuinifications expected Tuesday, another 16 will follow shortly,” our colleague Maria Sacchetti reports. “The court-ordered reunifications represent a rebuke to the Trump administration’s most dramatic attempt to curtail illegal border crossings, and could serve as a blueprint for fulfilling [U.S. District Judge Dana M. Sabraw]'s order to reunite more than 2,000 parents with a much larger group of children ages 5 to 18 by July 26.”

The federal judge also told the government on Tuesday to move faster in reuniting the children. “There’s still much time left today,” Sabraw said early Tuesday, our colleagues report. “These are firm deadlines. They’re not aspirational goals.”

An ambulance, reportedly carrying members of the rescued football team, arrives at a hospital in Chiang Rai on July 10. (AFP PHOTO / Lillian Suwanrumpha/AFP/Getty Images)

OUCH: Eight of the boys rescued from a Thai cave after more than two weeks trapped inside will have to remain hospitalized for at least a week because of a risk of rare infections. Two of the eight could have pneumonia, and all were being treated with antibiotics and vaccinations for tetanus and rabies, the New York Times’s Richard C. Paddock and Mike Ives reported yesterday.

All 12 of the boys and their coach were rescued from Tham Luang Cave as of yesterday, and are now in various stages of recovery, Richard and Mike report. Four boys were extracted on Sunday, and another four were recused Monday. The remaining team members and the coach were rescued yesterday. The first group to be rescued is adjusted to normal lighting, while the other are still wearing sunglasses, Thailand’s permanent secretary for public health, Jesada Chokedamrongsuk, told the Times.

“Although the likelihood of serious infection is small, specialists said they were taking precautions in case the boys acquired a rare disease while stuck in the cave,” Richard and Mike write. “One danger is getting an infection from bats or rodents they might have encountered underground. The boys reported seeing no wildlife in the flooded cavern where they took refuge, but doctors were still concerned.”

TRUMP TEMPERATURE

— President Trump offered a solution to the ongoing issue of reuniting immigrant families: “Don’t come to our country illegally.” Speaking to reporters Tuesday morning before a trip to Europe, the president was asked about the federal government’s inability to meet a court deadline for reuniting children under the age of 5 with their parents.

“Well,” he said, “I have a solution: Tell people not to come to our country illegally. That’s the solution. Don’t come to our country illegally. Come like other people do — come legally.”

When asked whether the intention was to “punish” the children, Trump replied: “I’m saying this: We have laws. We have borders … Don’t come to our country illegally. It’s not a good thing.” A bit later, he added: “Without borders, you do not have a country.”

Trump’s remarks imply that he places the blame for the separations on the migrants rather than on his administration’s approach, our colleague Philip Bump writes. Even further, Trump’s remarks misrepresent the intention that precedes the separations. As the families are traveling to the United States to seek asylum, they first must be in the United States, Philip explains. And Trump also reveals some of the confusion in the complex process of reunifying separated children with their parents.

“It does no good to say that the solution to reuniting children with their parents is for those parents never to have crossed the border in the first place, any more than to suggest that the appropriate response to having your house burgled is to have installed an alarm system months prior,” Philip writes. “There was no indication from Trump that the government was handling the reunions adeptly.”

— The Daily Beast’s Justin Glawe and Adam Rawnsley report that U.S. officials told some immigrant women that they needed to pay for DNA tests themselves if they wanted to be reunited with their children.

In some cases this came after the officials took any documents from the women that verified who they are. Furthermore, many of the immigrants entering the country don’t have the money to pay for such tests.

“The tests are being administered by a private contractor on behalf of the Department of Health and Human Services' Office of Refugee Resettlement, which oversees the care and housing of children,” Justin and Adam report. “HHS has refused to name the contractor, which may be a violation of federal law.”

“The government wants the parents to foot the bill for the DNA testing when they’re the ones that caused the need for DNA testing,” Iliana Holguin, an immigration attorney in El Paso told The Daily Beast. “It’s incredible.”

— Meanwhile, there have been technical glitches that have bogged down the process of tracking some of the children separated at the border.

“From the moment it went online in January of 2014, the computer system designed to track unaccompanied immigrant children and process their release has created headaches for the shelter staff, government employees and others who use it, according to interviews with a dozen current and former users, government reports, and congressional testimony,” Reuters reports. “Users described a frustrating array of issues, including that the portal could only handle a limited number of users at once without crashing, lost saved data, had poor searchability and required significant manual work for even small updates.”

U.S. Secretary of Health and Human Services (HHS) Alex Azar addresses a news conference to announce a nation-wide health care fraud and opioid enforcement action, at the Justice Department in Washington, U.S. June 28, 2018. (REUTERS/Jonathan Ernst)

— HHS Secretary Alex Azar has taken on the role of the public face of the administration’s migrant crisis. “Azar — an even-keeled technocrat whom the White House enlisted as the fixer after Homeland Security Kirstjen Nielsen’s highly criticized press conference last month — has since been attacked by dozens of lawmakers, interrupted by protesters and pilloried on cable TV,” Politico’s Dan Diamond reports. “Meanwhile, he’s working through a thicket of court orders and red tape to try to reunite thousands of migrant children in his custody with their parents, including 102 under the age of 5. It’s sapped Azar’s time and pulled his agency away from other priorities, such as lowering drug costs and helping solve the opioid epidemic.”

— As the Trump administration cracks down on the number of individuals gaining asylum in the United States, NPR’s Anna Gorman reports on the medical clinics that look to assess patients as a way to contribute to their case before the asylum office.

Anna writes about the Highland Human Rights Clinic in Oakland, Calif., which opened in 2001, that conducts medical exams for refugees a few times per week, checking patients for injuries, bullet wounds, broken bones and other signs of trauma. “Our job is to make sure that the asylum office understands all the medical and psychological facts about a person's case so that they can make a decision,” Nick Nelson, the clinic’s medical director, told Anna.

“Sometimes the asylum-seekers have health coverage that pays for the exams, but the county covers the cost for those who don't,” she writes. “In most cases, Nelson says, he finds evidence to support the stories his patients tell him. But there are also exams that don't yield definitive evidence. Nelson also addresses the asylum seekers' health needs, sometimes finding cases of tuberculosis or HIV that previously had gone undiagnosed. Nearly all of the patients he sees need mental health referrals, he says, because of years of torture or abuse in their native countries.”

The Pfizer company logo. (AP Photo/Richard Drew)

— On Monday, Trump tweeted that Pfizer and other drug manufacturers should be “ashamed” for raising drug prices. One day later, Trump tweeted he had spoken to the company’s chief executive about "rolling back" those price hikes.

Pfizer & others should be ashamed that they have raised drug prices for no reason. They are merely taking advantage of the poor & others unable to defend themselves, while at the same time giving bargain basement prices to other countries in Europe & elsewhere. We will respond!

Just talked with Pfizer CEO and @SecAzar on our drug pricing blueprint. Pfizer is rolling back price hikes, so American patients don’t pay more. We applaud Pfizer for this decision and hope other companies do the same. Great news for the American people!

Pfizer said Tuesday it would delay until the end of the year price hikes following Trump’s public shaming. Themove was made "to give the president an opportunity to work on his blueprint to strengthen the healthcare system and provide more access for patients,” the company said in a statement.As a result, price increases that were effective on July 1 would return "to their pre-July 1 levels as soon as technically possible" and would remain at that level until the end of the year or until the administration's blueprint "goes into effect."

“The announcement marked a successful use of the bully pulpit for Trump and a relatively rapid concession by one of the country’s largest companies,” our colleague Damian Paletta reports. “Trump’s threat does not appear to have substantially affected Pfizer’s stock price, but the firm could have decided it was unwise to risk become a punching bag for Trump.”

"I commend Pfizer for its constructive and professional approach, and its desire to work with President Trump to be part of the solution and not part of the problem," HHS Secretary Alex Azar said in a statement.

"Republicans have traditionally criticized government intervention in the pricing practices of private companies," Damian writes. "But Trump has broken with GOP economic conventions on many issues, including this one."

AGENCY ALERT

VA secretary nominee Robert Wilkie. (Alex Wong/Getty Images)

— Members of the Senate Veterans' Affairs Committee overwhelmingly voted to approve Robert Wilkie’s nomination to lead the Department of Veterans Affairs yesterday, essentially guaranteeing a confirmation by the full chamber later this summer, our colleagues Lisa Rein and Paul Sonne report.

Sen. Bernie Sanders (I-Vt.) was the only member to vote against Wilkie when the panel approved his nomination in a voice vote. A Sanders spokesman told The Post the “no” vote was over concern with the administration’s plans to privatize veterans health care, and not a vote against Wilkie himself.

“Democrats on the panel apparently were convinced that Wilkie, who is widely respected on Capitol Hill for his command of legislative procedure and military policy, would serve all veterans despite his association with controversial politicians,” Lisa and Paul report, referring to an earlier report from the pair that detailed Wilkie’s decades of experience in Washington and highlighted some of his close work and defense of some polarizing figures in U.S. politics.

“Wilkie said that if confirmed, he would carry out the mandate of newly passed legislation that calls for expanding private health care for veterans,” Lisa and Paul added. “But he said private care would not replace VA, a long-standing fear among Democrats.”

REPRODUCTIVE WARS

A member of the National Abortion Rights Action League (NARAL), Pro-Choice America protests with an “Etch A Sketch” in hand outside a hotel in Washington. (PAUL J. RICHARDS/AFP/Getty Images)

— The political fight over Kavanaugh is on.

Abortion-rights group NARAL Pro-Choice America launched a six-figure ad buy in Alaska, Maine, Colorado, Nevada and Texas calling on senators in those states to vote against Kavanaugh because he would repeal Roe v. Wade. “Kavanaugh was chosen because he lives up to Trump’s litmus test and will be a vote to end Roe v. Wade, criminalize abortion, and punish women,” the group’s president Ilyse Hogue said in a statement. “These senators hold the keys to women’s futures and our fundamental freedoms in their hands. Either women will continue to have the legal right to decide what happens with our bodies, and a hope to access to safe abortion, or Donald Trump’s Supreme Court will undo centuries of progress where women have been in control of our families and our lives.”

There are more than half a dozen Democrats who have announced their opposition to Kavanaugh. In a Tuesday interview with CBS News, Senate Minority Leader Charles E. Schumer (D-N.Y.) said he plans to “oppose him with everything I’ve got.” “This nominee will repeal Roe and women’s reproductive freedom, will repeal ACA — far against what the American people want. When they learn this, they’re going to oppose the nominee,” he said.

“But fierce Democratic opposition alone will not be enough to derail Kavanaugh’s confirmation,” our colleague Mike DeBonis reports. “Republicans hold a majority in the Senate with 51 seats, which would be sufficient to put him on the high court if all GOP senators support him.”

STATE SCAN

Maryland Gov. Larry Hogan, center, signs a contract with the federal government for the state's unique all-payer health care model in Annapolis. Seema Verma, administrator of the federal Centers for Medicare and Medicaid Services, is on the right. (AP Photo/Brian Witte)

The program allows Maryland to set its own rate for medical services, requiring all payers to charge the same rates across hospitals. The agreement will now allow that policy to apply across the entire health-care system. The contract is expected to save the state an extra $300 million by 2023, bringing the total savings to $1 billion over the five years, according to the Associated Press.

“The Maryland Model provides incentives across the health system to provide greater coordinated care, expanded patient-care delivery and collaboration of chronic-disease management . . . all while improving the quality of care at lower cost to the consumer,” Hogan said Monday, per the AP.